1. Constitutional grounds asserted for the first time on appeal are not properly before the
appellate court for review. Nevertheless, when it is necessary to determine the merits of
the action or where the issues cannot be intelligently decided without doing so, the
constitutionality of a statute should be decided, even if the parties failed to raise the
constitutional question, failed to plead the question, or failed to present the question to the
trial court.

2. Interpretation of a statute is a question of law, and an appellate court's review is unlimited.
An appellate court is not bound by the district court's interpretation of a statute.

3. In order to constitute an ex post facto law, a law must apply to conduct occurring before
it was enacted, and it must change the definition of criminal conduct or increase the
penalty for criminal conduct.

4. Because the enhancement sentencing provisions of K.S.A. 2002 Supp. 8-1567 do not
apply to an offender's actions occurring before their effective date and do not alter the
sentence imposed in earlier convictions, the provisions of K.S.A. 2002 Supp. 8-1567 were
not invalid as an ex post facto law.

5. When sentencing a defendant for a driving under the influence (DUI) offense under K.S.A.
2002 Supp. 8-1567(l)(3), any DUI convictions occurring during a person's lifetime shall be
taken into account.

GREEN, J.: Phillip Sedillos appeals from a bench trial conviction of driving under the
influence (DUI) of alcohol in violation of K.S.A. 2002 Supp. 8-1567. First, Sedillos argues that
because he had previously been informed that his prior DUI convictions would decay after 5
years, the classification of his current DUI conviction as a third offense and felony violates the Ex
Post Facto and Due Process Clauses of the United States Constitution. We find that Sedillos'
constitutional arguments fail. Finally, Sedillos argues that the trial court erred in using his two
prior DUI convictions to enhance his current DUI conviction to a felony when K.S.A. 2002 Supp.
8-1567(l)(3) does not include a retroactive provision pertaining to the prior convictions. We
again disagree. Because the plain language of K.S.A. 2003 Supp. 8-1567(m)(3) reveals that any
prior DUI convictions occurring during a defendant's lifetime shall be used to enhance the
sentence for the current DUI offense, it is unnecessary to include an additional retroactive
provision. Therefore, Sedillos' argument fails. Accordingly, we affirm the trial court's ruling.

In February 2003, the State charged Sedillos with his third DUI offense, an unclassified
person felony, in violation of K.S.A. 2002 Supp. 8-1567 for conduct that occurred in October
2002. Sedillos' prior convictions came from a DUI diversion granted in January 1996 and also a
DUI conviction in July 1997.

Under K.S.A. 2002 Supp. 8-1567(l)(3), any DUI conviction or entry into a diversion
agreement "occurring during a person's lifetime shall be taken into account when determining the
sentence to be imposed for a first, second, third, fourth or subsequent offender." Under an earlier
version of the statute, however, only DUI convictions or diversion agreements "occurring in the
immediately preceding five years, including prior to the effective date of this act, shall
be taken
into account" for purposes of determining the level of offense under the statute. (Emphasis
added.) K.S.A. 2000 Supp. 8-1567(k)(3).

Sedillos moved to strike his lifetime prior convictions arguing that the legislature's
omission of the phrase "including prior to the effective date of this act" from the July 1, 2001,
amendment to K.S.A. 8-1567(k)(3) bars the use of prior DUI convictions that occurred before the
amendment. The trial court denied the motion.

Sedillos waived his right to a jury trial and submitted his case to the trial court on
stipulated facts. The trial court found Sedillos guilty of DUI, a third offense, in violation of
K.S.A. 8-1567. He was sentenced to 1 year in jail with work release granted after 48 hours had
been served and fined $1,500.

Ex Post Facto and Due Process

First, Sedillos argues that the use of his prior DUI convictions to classify his current
conviction as a third offense and, therefore, a felony violates both the Ex Post Facto and Due
Process Clauses of the United States Constitution. Sedillos failed to raise this argument at the
trial court level. Constitutional grounds for reversal asserted for the first time on appeal are not
properly before the appellate court for review. State v. Williams, 275 Kan. 284, 64
P.3d 353
(2003). Nevertheless, when it is necessary to determine the merits of the action or where the
issues cannot be intelligently decided without doing so, the constitutionality of a statute should be
decided, even if the parties failed to raise the constitutional question, failed to plead the question,
or failed to present the question to the trial court. State v. Gordon, 275 Kan. 393,
408, 66 P.3d
903 (2003).

Sedillos' arguments require us to interpret K.S.A. 2002 Supp. 8-1567. "Interpretation of a
statute is a question of law, and an appellate court's review is unlimited. An appellate court is not
bound by the district court's interpretation of a statute. [Citation omitted.]" State v.
Maas, 275
Kan. 328, 330, 64 P.3d 382 (2003).

In order for the enhancement sentencing provisions of K.S.A. 2002 Supp. 8-1567 to
constitute an ex post facto law, they must apply to conduct occurring before they were enacted
and they must change the definition of criminal conduct or increase the penalty for criminal
conduct. City of Norton v. Hurt, 275 Kan. 521, 522, 66 P.3d 870 (2003).

Sedillos acknowledges that the ex post facto issue relating to K.S.A. 2002 Supp.
8-1567(l)(3) has been decided by our Supreme Court in Hurt, 275 Kan. 521. There,
the defendant
argued that the 2001 amendments to the enhanced sentencing provisions of the DUI city
ordinance which were modeled after those in K.S.A. 8-1567 violated the constitutional
prohibition against ex post facto laws. The defendant had been sentenced as a second DUI
offender because he had a previous DUI diversion from 1995 before the amendment of the city
ordinance and 8-1567. Our Supreme Court determined that the amended ordinance became
effective before the defendant's second DUI offense and increased the penalty for the second
violation only. Our Supreme Court held that the amended ordinance was not an ex post facto law
because it did not affect the defendant's actions prior to its effective date. 275 Kan. at 522-24.

Sedillos' current DUI offense occurred in October 2002, after the amendment to K.S.A.
8-1567 was enacted. Consequently, for sentencing purposes, the trial court was required to take
into account any convictions occurring during Sedillos' lifetime. K.S.A. 2002 Supp. 8-1567(l)(3).
The amendment only affected Sedillos' actions occurring after its effective date and increased the
penalty for his third DUI offense. The amendment did not increase the punishment for Sedillos'
previous DUI crimes. Consequently, under Hurt, 275 Kan. 521, the amended statute
is not an ex
post facto law. This court is duty bound to follow our Supreme Court precedent, unless there is
some indication that the court is departing from its previous position. State v.
Jackson, 30 Kan.
App. 2d 288, 299, 41 P.3d 871 (2002). Therefore, we find there was no ex post facto violation.

Nevertheless, Sedillos argues that although the application of K.S.A. 2002 Supp.
8-1567(l)(3) to this case may not constitute an ex post facto violation, it does violate his right to
due process of law under the Fifth and Fourteenth Amendments to the United States Constitution.
He maintains that it is fundamentally unfair to apply the amended version of K.S.A. 8-1567 and
use his convictions that would have decayed under the previous version of the statute to enhance
his sentence. Sedillos asserts that if he had been advised his prior convictions could be later used
to enhance a DUI violation to a felony, he may have asserted his right to a trial instead of entering
into a diversion agreement or a guilty plea in his prior convictions.

To support his position, Sedillos cites to the United States Supreme Court's decision in
Stogner v. California, 539 U.S. 607, 156 L. Ed. 2d 544, 123 S. Ct. 2446 (2003). In
that case, the
defendant was prosecuted for criminal conduct which was time-barred under the statutes of
limitations in effect at the time the alleged crimes were committed. California had enacted
legislation, however, which allowed the revival of prosecution for certain crimes. As part of its
analysis on the issue of whether the legislation constituted an ex post facto law, the Court noted
the following language from Judge Learned Hand in Falter v. United States, 23 F.2d
420, 426
(2nd Cir. 1928): "[E]xtending a limitations period after the State has assured 'a man that he has
become safe from its pursuit . . . seems to most of us unfair and dishonest.'" 539 U.S. at 611. The
Court found that this legislation as applied to Stogner constituted an ex post facto violation and
stated: "We conclude that a law enacted after expiration of a previously applicable limitations
period violates the Ex Post Facto Clause when it is applied to revive a previously
time-barred
prosecution." 539 U.S. at 632-33.

The decision in Stogner is inapplicable to the facts of the instant case. The
statute in
Stogner retroactively applied to conduct that was committed before the statute was
enacted and
attempted to punish that conduct. Here, however, the only criminal conduct that is being
punished is that which Sedillos committed after the 2001 amendment to K.S.A. 8-1567. His 1996
and 1997 convictions are only being used to enhance the sentence for his current DUI violation.
Therefore, the application of K.S.A. 2002 Supp. 8-1567(l)(3) to Sedillos' prior convictions does
not fail under Stogner.

Moreover, although Sedillos entered into his diversion agreement and plea agreement
when K.S.A. 8-1567 indicated that only convictions occurring in the previous 5 years could be
used to enhance the sentence for a current DUI offense, there is no indication that he relied on
this provision when entering into those agreements. See K.S.A. 2000 Supp. 8-1567(k)(3).
Indeed, such reliance would be illogical because the legislature could choose at any time to alter
the manner in which it punishes an offense occurring after the amendment date. Because the 2001
amendment to the enhanced sentencing provisions of 8-1567 only punishes conduct which occurs
subsequent to the amendment date and does not alter the sentence imposed in Sedillos' prior
convictions, we find that his argument fails. See K.S.A. 8-1567(l)(3).

Retroactive Application

Finally, Sedillos contends that the trial court erroneously used his two prior DUI
convictions to enhance his current DUI offense when K.S.A. 2002 Supp. 8-1567 does not contain
a retroactive provision relating to the prior convictions. This issue again requires us to interpret
K.S.A. 2002 Supp. 8-1567. "Interpretation of a statute is a question of law, and an appellate
court's review is unlimited. An appellate court is not bound by the district court's interpretation of
a statute. [Citation omitted.]" Maas, 275 Kan. at 330.

Sedillos seizes on the fact that the legislature, in its 2001 amendment of K.S.A. 8-1567,
did not include the phrase "prior to the effective date of this act." Essentially, Sedillos argues that
the omission of this phrase indicates the legislature's intention to not make the amendment
applicable to prior convictions occurring before its enactment. Such an interpretation of K.S.A.
2002 Supp. 8-1567, however, goes against the plain meaning of the statute.

"The fundamental rule of statutory construction to which all other rules are subordinate is
that
the intent of the legislature governs if that intent can be ascertained. The legislature is presumed
to have expressed its intent through the language of the statutory scheme it enacted. When a
statute is plain and unambiguous, the court must give effect to the intention of the legislature as
expressed, rather than determine what the law should or should not be. [Citation omitted.]"
Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).

"Criminal statutes must be strictly construed in favor of the accused. Any
reasonable
doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rule
of strict construction, however, is subordinate to the rule that judicial interpretation must be
reasonable and sensible to effect legislative design and intent. [Citation omitted.]" State v.
McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001).

Under K.S.A. 2002 Supp. 8-1567(l)(3), "any convictions occurring during a person's
lifetime" shall be used in calculating the sentence to be imposed for a third offender. The statute
does not limit a person's convictions to those that occur after July 1, 2001. To read such a
requirement into the statute would be contrary to the plain language of the statute that a person's
lifetime convictions shall be taken into account. As stated by our Supreme Court in
GT, Kansas,
L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001):
"Ordinary
words are to be given their ordinary meaning, and a statute should not be so read as to add that
which is not readily found therein or to read out what as a matter of ordinary English language is
in it. [Citation omitted.]" Here, the statute plainly reads that a person's lifetime convictions shall
be taken into account when determining the sentence to be imposed and does not merely apply to
those convictions that occur after July 1, 2001.

If we were to construe K.S.A. 2002 Supp. 8-1567(l)(3) as applying to only those
convictions that occur after the effective date of the amendment, such interpretation would
produce an unreasonable result that would contravene the clear language of the statute. If we
were to adopt Sedillos' interpretation, those prior DUI convictions occurring before July 2001
would not be counted for sentencing purposes. Thus, the result would contradict the language of
K.S.A. 2002 Supp. 8-1567(l)(3) indicating that a person's lifetime prior convictions
are to be
taken into account for sentencing purposes. "As a general rule, statutes are construed to avoid
unreasonable results. There is a presumption that the legislature does not intend to enact useless
or meaningless legislation. [Citation omitted.]" In re M.R., 272 Kan. 1335, 1342, 38
P.3d 694
(2002).

Although the previous version of K.S.A. 8-1567 included the phrase "prior to the effective
date of this act," this wording appeared to be unnecessary given what was already stated in the
provision, that is, that convictions occurring in the immediately preceding 5 years
would be taken
into account. K.S.A. 2000 Supp. 8-1567(k)(3). Moreover, such wording is unnecessary for the
amended version of 8-1567 where any convictions occurring during a person's lifetime are taken
into account for sentencing purposes. K.S.A. 2002 Supp. 8-1567(l)(3). As a result, we find that
the trial court properly used Sedillos' prior DUI convictions to enhance his current DUI offense to
a felony.